Citation Nr: 1601412 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 15-09 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied entitlement to TDIU. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Competent and persuasive evidence of record establishes that the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected hearing loss and tinnitus. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102 , 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a) , must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. The Veteran was provided VCAA notice in a January 2011 letter, advising him of what information and evidence is needed to substantiate his claim for TDIU (including extraschedular criteria), as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, the duty to notify is satisfied. The evidence of record contains service treatment records, post-service private and VA treatment records, VA examination reports, lay statements, and hearing testimony. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). VA provided the Veteran with hearing loss examinations in May 2010, March 2011 and August 2011 to evaluate the current extent of his lone service connected disabilities, hearing loss and tinnitus, particularly including their impact on employment. Those examination reports included all necessary testing, a full examination of the Veteran, and provided information adequate to evaluate the claims. Therefore, the examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). For all the foregoing reasons, the Board concludes that VA's duty to notify and assist the Veteran have been fulfilled with respect to the TDIU claim in appellate status. II. Criteria & Analysis Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. In this case service connection is in effect for bilateral hearing loss rated 10 percent disabling and tinnitus rated 10 percent disabling for a combined disability rating of 20 percent. 38 C.F.R. § 4.25. The Veteran has no other service-connected disabilities. His service-connected hearing loss and tinnitus do not meet the threshold schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). With regard to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In his Application for Increased Compensation Based on Unemployability (VA Form 21-8940) received in January 2011, the Veteran reported having worked in dentistry from 1971 until June 1999, reporting that he retired due to his service connected disability. He reported his highest monthly earnings were $20,000. His education level included college and dental school. He denied any additional training or education since becoming too disabled to work. In a January 2011 letter attached to this claim he described the impact of his hearing loss as involving mostly his left ear, with about a 90 to 95 percent loss of hearing in his left ear. He reported his work was affected in that he had difficulty understanding and communicating with patients while treating them. He described issues with the nature of his job as a dentist and being unable to remove and put back on the hearing aid due to sterility procedures. He indicated that he sat with his left ear towards his patients when working with them. He decided he could no longer practice dentistry due to this problem and due to his age and the specialized nature of his training; he was unable to find employment in any other field. He further contended in a March 2015 written supplement to his substantive appeal that after leaving dentistry, he was placed on unemployment and unsuccessfully attempted to find other employment. He alleged that he was only offered marginal employment because of his hearing problems. The Board has considered the medical and lay evidence of record and finds that referral to the Director, Compensation and Pension Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) is not warranted. The hearing loss was notably described as profound in the left ear and mild in the right ear in the August 2010 VA examination. Additionally his audiological records in the VA treatment records from 2010 through 2011 are noted to have confirmed his left ear to have total hearing loss and he used hearing amplifications bilaterally. Regarding the impact of the service-connected hearing loss and tinnitus on Veteran's occupation, the May 2010 VA examination report described the disability as causing significant effects on occupational activities, with the disability specifically noted to result in difficulties hearing when someone on his left side attempted to speak to him. Additionally the VA audiological records that confirmed he used hearing aids on both ears did note the Veteran to repeatedly have issues using the phone with his left ear as reported in August 2011 and October 2012, again with no evidence of measurable hearing in the left ear noted in August 2011 and elsewhere his audiology records confirmed total hearing loss for the left ear and mild low frequency sloping to profound high frequency hearing loss in the right ear as reported in a May 2011 record describing him as a good candidate for new amplification. He was noted to have the new amplification in August 2011 with problems regarding short battery life reported. An opinion was drafted in February 2011 by the Veteran's former treating physician regarding the his hearing loss with a statement made that his left ear hearing has never returned and has impaired his ability to treat his dental patients, because unless he turned his right ear toward his patients, he was unable to hear them speak, complain, or make a verbal request optimally. An addendum VA examination opinion to the May 2010 VA examination was obtained in March 2011 to specifically address the impact of the Veteran's hearing loss and tinnitus on employability. The examiner who had conducted the May 2010 VA examination reviewed the pertinent evidence of record. The examiner noted the Veteran to be unemployed. His hearing loss in the right ear was mild to moderate through the speech range, speech understanding was excellent at conversational speech in the right ear; left could not be tested. It was noted that the Veteran may have some difficulties understanding speech when someone is speaking on his left side and may have some difficulties with localization and lateralization and understanding speech in the presence of background noise. However, in a dental office with proper amplification in his right ear, his abilities to perform his normal duties should not be affected. His hearing loss should not interfere with his ability to work or find gainful employment. The rationale was that even persons with unilateral deafness have shown in classroom settings and employment settings to be able to succeed and function just as well as those without hearing impairment. A hearing aid with the addition of an 814 system would further assist in his abilities to perform his duties as a dentist. An assistive listening device like an FM system is known through research to improve the signal to noise ratio to between 6-12dB. His hearing loss should not interfere with his ability to work, or find gainful employment. Finally, an opinion was obtained in August 2011 stating that the Veteran's hearing loss and tinnitus had no impact on his ability to work. The Board finds that the most persuasive medical opinion evidence weighs against the claim for a TDIU, specifically the March 2011 VA examination addendum opinion. In this regard, the Board finds the opinion of the March 2011 VA examiner is probative and persuasive evidence against the claim of a TDIU, because it was based on a review of the claims file, interview of the Veteran, an thorough examination done earlier in May 2010, and is consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). This opinion from the March 2011 VA examiner confirmed that there were assistive devices that could help the Veteran with adapting his disability to an employment setting including dentistry. Adequate rationale was also provided about the type of devices that could be used to help him in a work situation. While there are other records clearly indicating that his hearing loss does impact him occupationally by affecting his ability to communicate verbally and by telephone, they do not go so far as to contain any opinions finding him wholly unemployable from all forms of substantial gainful employment. Nor do they provide a thorough explanation of whether he can be occupationally accommodated with assistive devices as does the March 2011 VA examination addendum. While the Veteran has alleged he is precluded from gainful employment due to his hearing loss and also suggested that the use of hearing aids would not work in a practice environment, he did not explain how he was precluded from all other forms of substantial gainful employment in light of his educational level, other than to suggest that his failure to obtain work while unemployed was proof of his being unable to obtain other employment besides dentistry. In regards to tinnitus, the Board notes that the Veteran's allegations of unemployability and the findings regarding occupational impact are shown to be due to hearing loss, with no evidence suggesting impact by the tinnitus beyond that already manifested by the hearing loss. Absent the minimum percentage requirements for basic eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a) being met, and given that the preponderance of the evidence (summarized above) does not show the Veteran unable to secure or follow a substantially gainful occupation as a result of service-connected disability, there is no benefit of the doubt to resolve in the Veteran's favor, and referral of this matter for extraschedular consideration is not warranted. The appeal for this matter must be denied. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Entitlement to a TDIU is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs